An alternative to guardianship? Ohio bill promises more independence for adults with disabilities. Critics see risks

By Karan Singh

COLUMBUS, Ohio — For Ohio adults with developmental disabilities who need help navigating major decisions, the legal options can present a stark choice: retain full control or, if a court finds them legally incompetent, have a guardian appointed with authority to make certain decisions for them.

A bill moving through the Ohio legislature seeks to establish a middle ground.

Senate Bill 35 would formally recognize “supported decision-making,” allowing an adult with a developmental disability to choose trusted people to help understand information, weigh options and communicate decisions — without surrendering the ultimate authority to make those decisions.

Unlike a guardian, who is appointed through probate court after a finding of legal incompetence, a supporter would not take over the person’s decision-making power. The adult could decide what help the supporter may provide, continue acting independently and end the arrangement at any time.

Supporters say that distinction could give people with developmental disabilities meaningful assistance without unnecessarily stripping them of autonomy. But the proposal raises a different concern: If the arrangement operates largely outside the courts, who makes sure the person providing that help isn’t exerting undue influence or taking advantage of the person they’re supposed to support?

That question has emerged as a central point of debate over SB 35, which passed the Senate unanimously last year and is now before the House Children and Human Services Committee.

The proposal from Republican Sens. Jerry Cirino of Kirtland and Michele Reynolds of Canal Winchester has drawn considerable support during two House hearings, along with questions about who is eligible to enter such an agreement, who can serve as a supporter and what happens when that person crosses the line.

The nuts and bolts

Supported decision-making itself is not new in Ohio as adults with developmental disabilities already turn to parents, friends and professionals for advice. SB 35 would give that practice a formal place in state law and create a written framework that families, doctors, banks and courts could recognize.

Under the current draft of the bill:

• All adults with developmental disabilities would be presumed competent unless a court determines otherwise.
• If an adult with a developmental disability who is “of sound mind” voluntarily chooses to enter a written plan, it must be created with the adult’s informed consent. The agreement must be signed before a notary or two adults who are not parties to it.
• Supporters could help explain options and consequences, communicate decisions, obtain relevant medical or financial information and participate in discussions with third parties. The adult could limit what a supporter is allowed to do.
• Supporters would have a fiduciary duty, meaning a legal obligation to put the adult’s interests ahead of their own. A supporter who breaches that duty could be liable for resulting damages.
• The adult could act without the supporter and could modify or end the arrangement at any time by notifying them.
• The Ohio Department of Developmental Disabilities would create a model plan and educational materials for adults, families and professionals.

Unlike guardianship, the supporter would not replace the adult as the decision-maker. This detail is critical because a guardian is appointed through probate court after a finding of legal incompetence and gains authority to make certain decisions for the person. With supported decision-making, however, the adult keeps that authority.

‘A less restrictive alternative to guardianship’

Supporters of SB 35 describe it as a way to formalize a practice already in play: asking trusted people for advice before making an important decision. The difference is that adults with developmental disabilities would enter a written agreement identifying their supporters while retaining the final authority to make their own choices.

The sponsors presented supported decision-making as “a less restrictive alternative to guardianship,” which is established through a county probate court. In those cases, a judge determines that an adult is legally incompetent and puts someone else in charge to make certain decisions on that person’s behalf.

“We don’t always need to approach everything from a guardian or a control standpoint,” Sen. Reynolds told the committee. “We need to coach individuals to be able to self-actualize and live to their fullest potential.”

The legislation would not change the state’s existing guardianship process or the authority granted under those appointments, meaning people who are unable to manage their own affairs would still be able to seek those protections. Ohio law already requires judges considering guardianship to weigh evidence that someone’s needs could be met through another option when introduced, and SB 35 would specifically allow supported decision-making to be presented that way.

Attorney Derek Graham said the proposal pushes back against the assumption that a developmental-disability diagnosis automatically means that person requires guardianship. His daughter has Down syndrome, and he told lawmakers that people who had never even met her suggested that she would need one after turning 18.

“My wife and I, we don’t want to make decisions for our daughter,” he said. “I want to continue to make decisions with her.”

Likewise, Scott Lundregan of ElevateDD said, “Virtually everything with estate planning and guardianship is all focused on what these people can’t do. Supported decision-making is about what they can do.”

Stephanie Leppert, who also has Down syndrome, described how supported decision-making already works in her life. With advice from friends and family as well as her service coordinator, she was able to move out of her parents’ home after 37 years and has since lived independently.

According to disability rights resource I Decide Kansas, 25 states and the District of Columbia already recognize supported decision-making agreements as legally valid documents.

More freedom, but who is watching?

Critics have questioned whether SB 35 gives adults with developmental disabilities enough protection when someone offering help violates their trust.

Chief Magistrate Lisa Wiseman of the Montgomery County Probate Court testified before the committee to clear up questions and concerns surrounding the bill, clarifying the limited role of judicial supervision in overseeing the proposed framework. Unlike guardianship, a supported decision-making agreement would generally be created privately rather than being filed with or approved through the probate system.

“The court would not be involved, typically, unless somebody has brought an action to the court,” she said, adding that family members could otherwise be unaware that an agreement even exists.

That raised questions about who would detect coercion or exploitation before serious harm occurs. The bill requires the principal -- meaning the adult with a developmental disability who enters the agreement -- to sign voluntarily before a notary or two independent witnesses. However, no judge would independently determine at the outset whether the person understands the agreement or has been pressured into it.

This is a key point of contention because the current draft reads, “If an adult with a developmental disability who is of sound mind voluntarily chooses to enter into a supported decision-making plan, the plan shall be created with the informed consent of the principal.”

Sarah Klingler, who serves on a friend’s supported decision-making team, said the provision is riddled with ambiguity and questioned who would determine whether someone has the mental capacity to enter the agreement. Dawn Bilpuch, who is blind and says she uses supported decision-making, addressed the matter from a different angle, noting that an unclear standard could expose people with disabilities to unnecessary competency testing before they can even use a system intended to increase their independence.

Kristen Henry of Advocacy and Protective Services said “of sound mind” mirrors a standard already used elsewhere in Ohio law, including requirements for creating a health care power of attorney.

Attorney Caroline A. Lahrmann, who is a co-guardian of two adults with developmental disabilities, offered the sharpest criticism. She argued that the wording does not explicitly require someone to be of sound mind before entering an agreement, contending that it only explains what happens when someone who meets that standard chooses to do so. She referred to the language as “malarkey” and “insulting,” arguing that it could leave people who need support vulnerable to legally significant agreements they do not understand.

“This bill treats people with developmental disabilities with less care than any other Ohioan,” she said.

Graham and Wiseman nevertheless testified on the premise that supported decision-making is intended for adults who retain the capacity to make their own decisions, illustrating the disagreement over how clearly the bill itself establishes that threshold.

Lahrmann also objected to who could become a supporter, since SB 35 does not categorically exclude paid service providers or establish criminal-history restrictions, instead relying largely on fiduciary duties and conflict-of-interest rules to hold them accountable. Criticizing the initiative for establishing “no oversight,” she also noted that the proposal does not itself create a new mandatory-reporting requirement for third parties who suspect exploitation.

Henry offered a different assessment and told the committee that “if somebody were to be clearly acting not in good faith, then they would not have the protections that are in that bill.” She also stated that many professionals within Ohio’s developmental-disability system are already required to report suspected abuse, neglect or exploitation. 

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An alternative to guardianship? Ohio bill promises more independence for adults with disabilities. Critics see risks